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Tuesday, January 31, 2006

For those interested

A very careful examination, and dissection, of the legal arguments put forward by the Bush Administration to support their illegal and unconstitutional wire-tapping campaign, published in the New York Review of Books.

My analysis was nothing more than a thumbnail, but I'm glad to see it is in accord with this one. For example:

the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked war-rantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

The letter also points out, importantly, that the DOJ reading of AUMF and FISA create a constitutional problem, while the "ordinary" reading of them are consistent with the constitutional system. This is a complex legal way of saying something quite simple, and quite fundamental to constitutional jurisprudence: if it ain't broke, don't fix it.

One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.